R. v. Pelletier, 2019 BCPC 211

Citation: R. v. Pelletier 2019 BCPC 211 Date: 20190916 File Nos: 22672-1, 23609-1, 22652-1 Registry: Vancouver IN THE PROVINCIAL COURT OF BRITISH COLUMBIA REGINA v. SKYLAR WAYNE PELLETIER RULING ON APPLICATION OF THE HONOURABLE JUDGE G. RIDEOUT Counsel for the Crown: K. Turnbull Counsel for the Defendant: D. Fai Place of Hearing: Vancouver , B.C. Date of Hearing: April 23, 24, 25, 26, 29, 30, May 23, June 20 and July 18, 2019 Date of Judgment: September 16, 2019 A Corrigendum was released by the Court on September 30,

A Corrigendum was released by the Court on September 30, 2019. The corrections have been made to the text and the Corrigendum is appended to this document. INDEX I. INTRODUCTION .. 3 II. GENERAL PRINCIPLES IN DANGEROUS OFFENDER PROCEEDINGS .. 3 III. IN THE CONTEXT OF THE YOUTH CRIMINAL JUSTICE ACT .. 6 IV. LEGAL FRAMEWORK .. 8 (

i) The Statutory Scheme . 8 (ii) Long-Term Supervision Order (“LTSO”) 10 V. OPINION EVIDENCE .. 11 VI. OVERVIEW OF THE PREDICATE OFFENCES .. 11 VII. THE ACCUSED’S CRIMINAL RECORD .. 13 VIII. THE ACCUSED’S RESPONSE TO CORRECTIONS .. 14 (

i) Youth Corrections . 14 (ii) Adult Corrections . 15 IX. THE ACCUSED’S RESPONSE TO COMMUNITY SUPERVISION .. 15 X. RISK ASSESSMENT AND TREATMENT . 16 (

i) Dr. Bodnarchuk . 16 (ii) Dr. Paul Janke . 17 (iii) Dr. Tina Su .. 19 (iv) Dr. Todd Tomita . 21 (

a) The Accused’s Current Risk . 21 (

b) Risk Assessment Tools . 22 (

c) The Accused’s Mental Health Diagnosis . 23 (

d) Nature of the Predicate Offences . 23 (

e) The Accused’s Lack of Insight 24 (

f) The Accused’s Lack of Motivation .. 24 (

g) The Accused’s Lack of Positive Influences . 25 (

h) The Accused’s Treatment Needs . 25 XI. CORRECTIONAL RESOURCES .. 26 (

i) Mr. Chris Devlin .. 26 (ii) Ms. Montee Dunbar 26 (iii) Ms. Claire McKenzie . 27 (iv) Ms. Kandace Goldstone . 27 XII. GLADUE FACTORS .. 28 XIII. VICTIM IMPACT STATEMENTS .. 29 XIV. SUBMISSIONS OF THE ACCUSED’S PARENTS .. 29

XV. POSITION OF THE PARTIES ON DESIGNATION.. 30 (

i) The Crown.. 30 (a) S. 753(1)(a)(

i) and (ii) and (

b) of the Code Analysis. 30 (b) S. 753(4.1) of the Code Analysis. 31 (c) S. 753(5) of the Code Analysis. 32 (

d) Range of Sentences for the Predicate Offences. 32 (ii) The Accused. 33 (

a) Limitations on Dangerous Offender Designation.. 33 (

b) Pattern of Repetitive Behaviour 33 (

c) Similarity of the Predicate Offences to Prior Offences. 34 (

d) Failure to Control Sexual Impulses. 34 (

e) Diminished Moral Culpability. 35 (

f) Sentence to be Imposed for the Predicate Offences. 35 XVI. DESIGNATION STAGE ANALYSIS.. 36 (

i) S. 753(i)(a)(

i) and (ii) of the Code. 36 (ii) S. 753(1)(

b) of the Code. 39 (iii) Gladue Factors. 41 XVII. RULING ON DESIGNATION.. 41 XVIII. PENALTY STAGE ANALYSIS.. 41 XIX. SENTENCE TO BE IMPOSED.. 42 XX. LTSO ANALYSIS.. 44 XXI. RULING ON LTSO.. 44 XXII. ANCILLARY ORDERS.. 44 I. INTRODUCTION [1] The respondent, Skylar Wayne Pelletier (the “accused”), was born in Regina on November 21, 1999. He is Indigenous. Hestruggles with a variety of diagnosed mental health issues. [2] On August 14, 2017, the accused was found guilty of breaking and entering a dwelling house on September 14, 2016 for thepurpose of committing sexual assault, contrary to s. 348(1)(

d) of the Criminal Code of Canada (the “Code”), and committing sexualassault on September 14, 2016, contrary to s. 271 of the Code (the “predicate offences”). [3] He was 16 years old at the time he committed the predicate offences. [4] Reasons for Judgment are indexed at R. v.

S.W.P., 2017 BCPC 234 . [5] Following conviction, but prior to sentence, the applicant (the “Crown”) applied to have the accused sentenced to an adultsentence pursuant to s. 64(1) of the Youth Criminal Justice Act (the “YCJA”). [6] On March 29, 2018, the court ordered that the accused was to be sentenced to an adult sentence. [7] Reasons for the ruling are indexed at R. v. S.W.P., 2018 BCPC 71 . [8] On April 18, 2019, the Crown filed notice of its intention to have the court designate the accused to be a dangerous offenderpursuant to

Part XXIV of the Code. II. GENERAL PRINCIPLES IN DANGEROUS

OFFENDER PROCEEDINGS [9] The Supreme Court of Canada (the “SCC”) has confirmed that dangerous offender proceedings form part of the sentencingprocess: R. v. Jones, (SCC), [1994] 2 S.C.R. 229 at pp. 279-280. The SCC has also confirmed that when interpreting thedangerous offender provisions, the court must be guided by the fundamental purpose and principles of sentencing contained in ss. 718 -718.2 of the Code: R. v. Johnson, 2003 SCC 46 at para. 23. [10] At their root, the dangerous offender provisions are preventative sanctions.

The protection of the public must ultimately be atthe forefront of a court decision to declare or not declare an offender as a dangerous offender: R. v. Sipo, 2014 SCC 47 . [11] An offender cannot be designated as a dangerous offender unless a court concludes, after an assessment of prospective risk, thatthe offender is a future “threat”. This future risk assessment requires a consideration of future treatment prospects: R. v. Boutilier, 2017SCC 64 at para. 23. [12] In the leading case of R. v.

Lyons, (SCC), [1987] 2 S.C.R. 309 at 338, the SCC read the objective element ofthe designation - the requirement that the predicate offence be a “serious personal injury offence” - together with the subjective element -the “threat” assessment - and concluded there were four criteria explicit from the language of s. 753(1): (1) the offender has beenconvicted of, and has been sentenced for, a “serious personal injury offence”; (2) this predicate offence is part of a broader pattern ofviolence; (3) there is a high likelihood of harmful recidivism; and (4) the violent conduct is intractable. [13] The SCC in Boutilier, supra, at para. 27 defined “intractable” conduct as meaning behaviour that an offender is unable tosurmount. [14] Additionally, for an offender to be declared dangerous and then to be penalized with the extreme form of a preventativesentence, the offender “must pose a future threat to public safety”: ibid at para. 34. [15] Determining whether or not a high risk of recidivism and intractability is present necessarily involves a prospective inquiry intowhether the offender will continue to be “a real and present danger to life or limb”: ibid at para. 35. [16] The second category of dangerousness based on sexual conduct, under s. 753(1)(b), reinforces the conclusion that s. 753(1)(a)mandates a prospective assessment.

This category requires, in addition to evidence of a pattern of past conduct, an independentassessment of future risk: ibid at para. 38. [17] Evidence of future treatment prospects must be considered at both the designation stage and penalty stage of dangerous offenderproceedings. [18] The Crown and the accused “must” present any prospective evidence concerning risk, intractability, or treatment programs,including the required assessment report pursuant to s. 752.1 addressing prospective treatment options.

Many aspects of clinicalevaluations provide evidence going to both the assessment of the offender’s future risk and the penalty necessary to manage this risk:ibid at para. 44. [19] The concluding remarks of the SCC in Boutilier, supra, at para. 46 are apposite to this hearing: [46] In sum, a finding of dangerousness has always required that the Crown demonstrate, beyond a reasonable doubt, a high likelihoodof harmful recidivism and the intractability of the violent pattern of conduct.

A prospective assessment of dangerousness ensures thatonly offenders who pose a tremendous future risk are designated as dangerous and face the possibility of being sentenced to anindeterminate detention. This necessarily involves the consideration of future treatment prospects. …. [20] The conduct to be considered in determining whether the Crown has proven beyond a reasonable doubt that an offender poses afuture danger to society is conduct in “any sexual matter”. Offences that are not “sexual” cannot be considered in assessing whether theCrown has proven the criteria under s. 753(1)(

b) of the Code. [21] The determination as to whether there is a likelihood that an offender will commit future harm through a failure to controlsexual impulses must be made with reference to his “present condition according to past behaviour and patterns of conduct”: ibid at para.26. [22] A core issue in this case turns on the principle of restraint enunciated in subparas. (

d) and (

e) of s. 718.2 of the Code, whichprovide as follows: 718.2 A court that imposes a sentence shall also take into consideration the following principles: ... (

d) an offender should not be deprived of liberty, if less restrictive sanctions may be appropriate in the circumstances; and (

e) all available sanctions, other than imprisonment, that are reasonable in the circumstances and consistent with the harm done tovictims or to the community should be considered for all offenders, with particular attention to the circumstances of Aboriginaloffenders. [23] The joint impact of these principles is that a sentencing judge must consider the possibility that a less restrictive sanction couldattain the same sentencing objectives that a more restrictive sanction would attain.

III. IN THE CONTEXT OF THE YOUTH CRIMINAL JUSTICE ACT [ 24 ] Specific principles contained in s. 3(1) of the YCJA apply to young persons. This includes the principle that a young person’s moral blameworthiness is diminished: 3(1)(

b) the criminal justice system for young persons must be separate from that of adults, must be based on the principle of diminished moral blameworthiness or culpability and must emphasize the following: (

i) rehabilitation and reintegration, (ii) fair and proportionate accountability that is consistent with the greater dependency of young persons and their reduced level of maturity, (iii) enhanced procedural protection to ensure that young persons are treated fairly and that their rights, including their right to privacy, are protected, (iv) timely intervention that reinforces the link between the offending behaviour and its consequences, and (

v) the promptness and speed with which persons responsible for enforcing this Act must act, given young persons’ perception of time; [ 25 ] In R. v. B. (D.) , 2008 SCC 25 , the SCC addressed the validity of the “presumptive offence” provisions of the YCJA . Writing for the majority, Abella J. made the following observation: [1] Young people who commit crimes have historically been treated separately and distinctly from adults. This does not mean that young people are not accountable for the offences they commit.

They are decidedly but differently accountable. [ 26 ] The court also observed that young people have heightened vulnerability, less maturity and a reduced capacity for moral judgment. The court went on to note: [47] The first question therefore is whether the presumption of diminished moral culpability is a legal principle. In my view it is. Special rules based on reduced maturity and moral capacity have governed young persons in conflict with the law from “the beginning of legal history” (Nicholas Bala and Mary-Anne Kirvan, “The Statute: Its Principles and Provisions and Their

Interpretation by the Courts”, in Ruth M. Mann, ed., Juvenile Crime and Delinquency: A Turn of the Century Reader (2000), at p. 45)… [ 27 ] The Alberta Court of Appeal in R. v. Neve , 1999 ABCA 206 at para. 259 , commented on the interaction of the dangerous offender provisions of the Code and the Young Offenders Act (“ YOA ”), R.S.C. 1985, c.

Y-1 (replaced by the YCJA in 2003). [ 28 ] The Court found that the dangerous offender provisions of the Code did not trump the provisions of the YOA and, in particular, that the YOA specifically emphasized that the principle of rehabilitation was to be taken into account in sentencing of a Young Person. [ 29 ] As noted at para. 24 of this ruling, s. 3(1)(b)(

i) of the YCJA places an emphasis on rehabilitation and reintegration. Following the reasoning of the Court of Appeal in Neve , I find that it is necessary to exercise caution when placing weight on the accused’s prior behaviour, including weight that would attach to his prior youth criminal record in dangerous offender proceedings. [ 30 ] The accused was 16 years old at the time he committed the predicate offences. IV. LEGAL FRAMEWORK (

i) The Statutory Scheme [ 31 ] The dangerous offender scheme is designed as a “two-stage” process. The first stage is the designation stage. [ 32 ] The statutory provisions that are relevant to the designation stage in this case are found in s. 753 of the Code : 753

(1) On application made under this Part after an assessment report is filed under subsection 752.1(2), the court shall find the offender to be a dangerous offender if it is satisfied (

a) that the offence for which the offender has been convicted is a serious personal injury offence described in paragraph (

a) of the definition of that expression in

section 752 and the offender constitutes a threat to the life, safety or physical or mental well-being of other persons on the basis of evidence establishing (

i) a pattern of repetitive behaviour by the offender, of which the offence for which he or she has been convicted forms a part, showing a failure to restrain his or her behaviour and a likelihood of causing death or injury to other persons, or inflicting severe psychological damage on other persons, through failure in the future to restrain his or her behaviour, (ii) a pattern of persistent aggressive behaviour by the offender, of which the offence for which he or she has been convicted forms a part, showing a substantial degree of indifference on the part of the offender respecting the reasonably foreseeable consequences to other persons of his or her behaviour, or…

(

b) that the offence for which the offender has been convicted is a serious personal injury offence described in paragraph (

b) of thedefinition of that expression in

section 752 and the offender, by his or her conduct in any sexual matter including that involved in thecommission of the offence for which he or she has been convicted, has shown a failure to control his or her sexual impulses and alikelihood of causing injury, pain or other evil to other persons through failure in the future to control his or her sexual impulses. [33] The second stage of the process is characterized as the “penalty stage”. The statutory provisions that are relevant to the penaltystage in this case are also found in s. 753 of the Code:

(4) If the court finds an offender to be a dangerous offender, it shall (

a) impose a sentence of detention in a penitentiary for an indeterminate period; (

b) impose a sentence for the offence for which the offender has been convicted — which must be a minimum punishment ofimprisonment for a term of two years — and order that the offender be subject to long-term supervision for a period that does not exceed10 years; or (

c) impose a sentence for the offence for which the offender has been convicted…

(5) If the court does not find an offender to be a dangerous offender, (

a) the court may treat the application as an application to find the offender to be a long-term offender,

section 753.1 applies to theapplication and the court may either find that the offender is a long-term offender or hold another hearing for that purpose; or (

b) the court may impose sentence for the offence for which the offender has been convicted. [34] Section 753(1) contemplates two categories of dangerousness: (

a) dangerousness resulting from violent behaviour, and (b)dangerousness resulting from sexual behaviour. [35] The Crown is applying under s. 753(1)(a)(

i) and (ii) and (b), seeking a designation that the accused is a dangerous offender dueto his sexual behaviour. Both subsections require that the Crown must establish beyond a reasonable doubt that one or both of thepredicate offences are serious personal injury offences as defined by s. 752 of the Code. [36] The accused has admitted that the predicate offences are serious personal injury offences. (ii) Long-Term Supervision Order (“LTSO”) [37] The purpose of an LTSO is twofold: (1) to protect the public, and (2) to rehabilitate and reintegrate offenders back into thecommunity.

Further, the intention behind the legislative scheme was to create a mechanism which would be speedy and flexible andwhich would not result in lengthy re-incarceration of offenders in the absence of a new crime being committed: R. v. Ipeelee, 2012 SCC 45 at para. 54. [38] The supervision period in an LTSO is not intended to be penal, but rather to accomplish the goal of preventing future crimes: R.v.

R.(J.W.), 2010 BCCA 66 at para. 43. [39] By operation of ss. 134 and 134.1 of the Corrections and Conditional Release Act (“CCRA”), an offender is subject toconditions that are imposed by the National Parole Board (“NPB”), as well as being subject to instructions imposed by a CommunityParole Officer (“CPO”). The NPB may set or cancel conditions. In other words, once an offender’s sentence has expired, he or she isessentially on parole. As such, “an order of this nature is a drastic interference with the liberty of the subject”: R. v. Norman, 2015 ONSC2735 , applied R. v.

Davidson, 2015 BCPC 335 , 2015 BCPC 0335. [40] While the NPB will not impose a supervision condition requiring that an offender take a specific type of medication, the NPBcan require an offender to follow psychiatric counselling, which may include a prescription of a specific type of medication: Davidson,ibid at para. 57. [41] If the offender refuses to take prescribed medication, then the NPB can view that failure as a potential breach.

Under s. 135.1 ofthe CCRA, the NPB can then suspend the order, authorize the apprehension of the offender, and commit the offender to a community-based residential facility or into custody until the suspension is cancelled or new conditions have been imposed. The period of thecommitment must not exceed 90 days: ibid at para. 58. V. OPINION EVIDENCE [42] The opinions of psychiatrists concerning treatability and risk to reoffend play a significant role in dangerous offenderproceedings. In R. v.

Pike, 2010 BCCA 401 at paras. 61 and 63, the Court of Appeal described the role of psychiatric evidenceas “vital” in dangerous offender proceedings. [43] At para. 64 of Pike, the Court of Appeal, citing R. v. Neve, supra, listed the following non-exhaustive factors to be considered inassessing the weight to be given to psychiatric evidence: [64] ... 1. the qualifications and practice of the psychiatrist;

2. the opportunity the psychiatrist had to assess the person, including: length of personal contact, place of contact, role with ongoing treatment, and involvement with the institution in which the person is a patient or prisoner; 3. the unique features of the doctor-patient relationship, such as hostility or fear by the patient (or the psychiatrist) arising from the personalities, the circumstances of the contact, and the role of the psychiatrist; 4. specifically and precisely what documents the psychiatrist had available and reviewed, for example, from earlier court proceedings, institutional records, other medical consultations, or treatment; 5. the nature and scope of consultations (this could include: personal contact with third parties, information from other health care professionals, prison authorities, police, lawyers, family); 6. specifically and precisely what the psychiatrist relies on in coming to an opinion ; and 7. the strengths and weaknesses of the information and material that is relied on . [Emphasis added.] VI.

OVERVIEW OF THE PREDICATE OFFENCES [ 44 ] In the court’s reasons for Ruling on Application, supra, to have the accused sentenced to an adult sentence, the court provided an overview of the predicate offences, which is reproduced here to give context to these proceedings: [7] The Reasons for Judgment provide a detailed background in relation to the Index Offences. To provide context, the opening four paragraphs of the Introduction found at p. 1, supra are of assistance: [1] L.A.R. (the “complainant”) is a citizen of the country of Colombia.

She came to Vancouver on September 10, 2016, to visit her daughter and her daughter’s husband. The purpose of the trip was to celebrate her daughter’s pending delivery of a second child. [2] In the early morning hours of September 14, 2016, the complainant was awoken in her bedroom at her daughter’s house (the “subject residence”) when she experienced the presence of a “heavy atmosphere” in her bedroom. She opened her eyes and saw a man in his underwear. [3] The complainant was terrified and prayed that she would not be killed. She testified the intruder took out his penis and began to masturbate to ejaculation.

She managed to flee from her bedroom and ran to her daughter’s bedroom where she awoke her daughter and her daughter’s husband, screaming at them that there was a man in her bedroom. [4] Pandemonium broke out. The police were called.

The intruder fled. [8] The case for the Applicant was based on both direct evidence and circumstantial evidence, including: • Testimonies of the occupants of the subject residence; • Testimonies of two supervisors, who were watching over the Respondent 24/7; • Closed caption security camera footage; and, • Fingerprint analysis in which a fingerprint located on the interior aluminum window frame in the complainant’s second-floor bedroom was identified as belonging to the Respondent. [9] The Respondent elected not to testify or to call any evidence on his behalf. [10] I found that the circumstantial evidence advanced by the Applicant enveloped the Respondent in a strong and cogent network of inculpatory facts that cried out for an explanation: ibid. , at paras. 218 & 219. [11] I found that it was the Respondent who deposited his fingerprint on the metal window track on the Complainant’s bedroom, located on the second floor of the subject residence, between 12:30 AM and 3:00 AM of September 14, 2016: ibid. , at para. 220. [12] After weighing all of the evidence adduced by the Applicant, and considering the totality of the surrounding circumstances, I found that the Applicant established beyond a reasonable doubt that the intruder was the Respondent, who committed the index offences: ibid. , at paras. 221 & 222. [ 45 ] The accused was the only resident at a specialized residence, Sherbrooke House, located in Vancouver, where he was being supervised 24/7.

After approximately 3 weeks at this residence, he took advantage of an opportunity to sneak out and commit the predicate offences. VII. THE ACCUSED’S CRIMINAL RECORD [ 46 ] On July 22, 2016, the accused pled guilty to 4 separate offences, including: 1. Assault – on June 6, 2015, he assaulted his 10-year-old sister who was asleep in her bedroom by stomping and striking her in the head. It was reported that he was experiencing paranoia and auditory hallucinations at that time;

2. Assault – on March 3, 2016, at approximately 10:00 pm, he was walking around in Vancouver looking for the opportunity to initiate sexual contact with a woman. He saw a woman of interest and followed her for a short period of time. He was aroused by her “ass” and reached out to grab one of her breasts. He missed her breast and his fingers were forced into her mouth. He admitted to Probation Officer (“PO”) Joanne McKinnon that he was not intending to grab the victim’s face but rather he intended to “grab her boob”. He “feels bad for it” and can imagine the victim was “traumatized”: Exh. 2, Tab 15, p. 3; 3.

Indecent Act – on March 4, 2016, while living at Easter Seal House in Vancouver, he became aroused by a female massage therapist and began to masturbate and thrust his erect penis into the clothed buttocks of the victim. He told Dr. Bodnarchuk, clinical psychiatrist, that he watched the victim for about an hour through a window. He was masturbating as he approached her and was close to orgasm. Achieving orgasm was his goal – it was “crazy exciting”: ibid Tab 25A, pp. 425 (052 and 054); and 4.

Indecent Act – that on March 5, 2016, while still living at Easter Seal House, he was observed by another woman masturbating while he was watching her in the common area of the residence. He told Dr. Bodnarchuk that the trigger was seeing a woman he described as cute, with a nice figure and “ass… damn I wish I had a piece of this, shit I need to tap that, it’s pretty likely I’ll get away with this….” He told Dr. Bodnarchuk that he thought the victim would become aroused when she saw his erect penis and want to participate in consensual sexual activity.

When the victim walked away, he was disappointed, but he liked how she was surprised and shocked: ibid p. 425 (051). [ 47 ] The accused received a global sentence of an Intensive Support and Supervision Order (“ISSP”) that expired on November 21, 2018, and a 6 month Deferred Custody and Supervision Order (“DCSO”). The DCSO required 24/7 supervision. [ 48 ] The accused has also pled guilty to two assault charges relating to incidents on July 22, 2017 and November 13, 2017 at the Burnaby Youth Correction Centre (“BYCC”). In the July 2017 incident, he became involved in a physical altercation with another inmate.

In the November 2017 incident, he hit a guard multiple times with a closed fist when he was told to return to his room after calling the guard a “goof”. [ 49 ] The accused is to be sentenced on the two outstanding assault charges following the ruling in these proceedings. VIII. THE ACCUSED’S RESPONSE TO CORRECTIONS (

i) Youth Corrections [ 50 ] The accused’s behaviour while in custody at the BYCC for the predicate offences has been problematic for him. [ 51 ] Tonje Olson, Psychiatric Social Worker, in her report dated October 12, 2017 [Exh. 2, Tab 21], reports that the accused has been involved in 130 reported incidents which included “immature posturing… physical violence… intimidation… sexualized behaviour… public masturbation… and an inability to control his sexual impulses”. [ 52 ] His sexually inappropriate behaviours reached such a level that a decision was made to limit his contact with female staff and volunteers at the BYCC. [ 53 ] The accused was involved in a lengthy counselling relationship with Dr.

Bodnarchuk. Three days after the accused ended that counselling relationship, he was found with marijuana and matches in his room at the BYCC.

In August of 2017, the frequency of the accused’s sexualized behaviour increased to ten incidents over the course of that month: ibid . [ 54 ] On the day the accused was found guilty of committing the predicate offences, when he was being returned to the BYCC by a female Sheriff, she reported that when she opened the wagon door, she observed him masturbating. [ 55 ] A further incident occurred in the summer of 2017, when the accused and a female youth inmate were attending a professional visit at the BYCC.

It was reported that the accused was sent back to his room, but about one hour later it was discovered that the accused had hidden in a hallway out of camera view, apparently waiting for the female youth inmate. On another occasion, the accused hid in a female youth inmate’s room while she was out of her room and staff were preoccupied: ibid . [ 56 ] Largely as a result of the accused’s inability to control his sexual impulses, the Provincial Director of Corrections applied to have the accused transferred from the BYCC to the North Fraser Regional Correction Centre (“NFRCC”).

The application was granted on February 16, 2018 by Bahen P.C.J. (ii) Adult Corrections [ 57 ] After the accused was transferred to NFRCC, the number of reported incidents decreased dramatically. He was involved with another inmate in a fight over food on March 19, 2018. [ 58 ] More importantly, there appear to be no reported incidents of inappropriate sexual behaviours.

IX. THE ACCUSED’S RESPONSE TO COMMUNITY SUPERVISION [ 59 ] The accused’s response to community supervision as a youth was problematic. [ 60 ] In particular, he committed the predicate offences when he was a resident of Sherbrooke House, a specialized residence specifically designed to address the accused’s impulsive behaviours. X. RISK ASSESSMENT AND TREATMENT (

i) Dr. Bodnarchuk [ 61 ] Dr. Bodnarchuk is a clinical psychologist. He provided counselling and treatment to the accused from 2016 through 2018. He prepared several reports that were filed in these proceedings. [ 62 ] He was qualified to give expert opinion evidence in the area of clinical psychology and to provide opinion evidence relating to the accused’s risk and treatment suitability. [ 63 ] He testified that the accused displayed personality traits that would need to be addressed.

Those traits included: • Lack of insight into his offending behaviours; • Low motivation for achievement with respect to life skills and education; • Social awkwardness; • Impulsivity; and • Inability to inhibit sexual and other aggressive impulses. [ 64 ] His formal treatment of the accused commenced on August 3, 2016. Between September of 2016 and October of 2017, the accused participated in 27 sex offender treatment sessions with Dr. Bodnarchuk. [ 65 ] Dr.

Bodnarchuk testified that the accused’s response to sex offender treatment was sporadic: Transcript, April 23, 2019, p. 13, ll. 9-44. [ 66 ] He testified that the accused was taking prescribed medication at the time he was receiving sex offender treatment from Dr. Bodnarchuk, including: • Abilify from August 2016 to June 2017; • Clonazepam from August 2016 to April 2017; • Prozac from April 2017 to November 2017; • Sertraline from August 2016 to April 2017; and • Trazadone from April 2017 to August 2017. [ 67 ] In June of 2016, Dr.

Bodnarchuk utilized an actuarial tool called Estimate of Risk Adolescent Sex Offence Recidivism 2 (“ERASOR 2”) to determine the accused’s risk to reoffend. The test is valid for two years. [ 68 ] It was his opinion that the accused was at a moderate risk to reoffend if efforts were not made to manage this risk: ibid at p. 15, ll. 1-33. [ 69 ] In relation to treatment, Dr.

Bodnarchuk opined: “…[the accused] would benefit from greater structure in his daily life, close supervision, psychoeducation on appropriate sexuality and social skills training and development of sexual relationships, sexual offence-specific treatment and greater residential stability.” [ 70 ] He was also of the opinion that the accused would benefit from group sex offender treatment therapy. (ii) Dr. Paul Janke [ 71 ] Dr. Paul Janke is a forensic psychiatrist.

He was qualified to provide opinion evidence in the areas of the accused’s risk for recidivism, including sexual and violent recidivism; his treatability; recommendations for his treatment; and strategies for his management in the community. [ 72 ] Dr. Janke met with the accused on three occasions for a total of just under three hours. As well, he reviewed various reports of other clinicians who were involved in the assessment and treatment of the accused.

[ 73 ] He prepared a Psychiatry Report dated October 24, 2017 [Exh. 2, tab 23]. [ 74 ] In both his testimony and in his Psychiatry Report, he was of the opinion that the accused had a prior diagnosis of obsessive compulsive disorder that was in remission as a result of the accused taking prescribed medication. [ 75 ] In addition, he was of the opinion that the accused easily meets the criteria for paraphilia, not otherwise specified. [ 76 ] He also testified that at the time he completed his Psychiatry Report, a diagnosis of specific arousal to rape was not available in the diagnostic manual, though experts who assess and treat individuals who commit sexual offences agree that specific arousal to non- consensual sexual activity can occur: Psychiatry Report at p. 8. [ 77 ] He expressed concern that while the accused’s sexual offending behaviours had not involved penetration, if the accused’s behaviour is not checked, it could result in an escalating pattern of more aggressive sexualized behaviour: ibid at p. 8 and 9. [ 78 ] He described the accused as an individual with: “… considerable limitations in terms of interpersonal social skills and in some ways presents as being quite immature.

In other aspects he has awareness of societal expectations and is able to interact and engage with the adults involved in his current supervision and care.

The accused enjoys tremendous support from his biological parents…”: ibid . [ 79 ] He testified that he would place the accused in the high-risk category to reoffend, and that his inappropriate sexual behaviour was more likely than not to increase over the next 10 or even 15 years before he might experience a radical reduction in sexual drive and interest: Transcript, supra p.26, ll. 39-47. [ 80 ] From a treatment perspective, it was his opinion that the Provincial Correction system had only limited programming that was not specific enough to address the needs of the accused. [ 81 ] It was his understanding that the Federal Correction system would be more appropriate, as the accused would have access to intensive programming specifically designed to address his deviant sexual arousal: ibid at p. 9. [ 82 ] It is noteworthy that Dr.

Janke contemplated the future reintegration of the accused into the community, but with strict supervision: “It is my very strong opinion that [the accused] will require very close supervision in the community, far beyond that which can be offered through placement with his parents, or even in a specialized group home. It is my opinion it is more likely than not that [the accused], at some point will require treatment with anti-androgent medications to provide him with adequate control over his sexual drive”: ibid at p. 10. (iii) Dr. Tina Su [ 83 ] Dr. Su is a psychologist.

She conducted a psychological assessment of the accused for use in the hearing to determine if the accused should be sentenced as an adult. Her psychological report was filed in these proceedings [Exh. 5]. [ 84 ] The accused was assessed in September 2017 by Dr. Su at the Inpatient Assessment Unit of the Youth Forensic Psychiatric Services. [ 85 ] Dr. Su noted that the accused was first admitted to the BYCC in March 2016. From her review of BYCC records, Dr.

Su noted that the accused frequently instigated acts of physical and verbal aggression with other youths. [ 86 ] The accused readily acknowledged that he did get into fights with other youths because he viewed himself to be a “top dog”. [ 87 ] The accused told Dr. Su that he first came into contact with pornography when he was nine years old. He reported that shortly afterwards he began to masturbate to ejaculation thinking about pornography. His principal fantasy involved heterosexual sex with females of his age or older. [ 88 ] He reported to Dr.

Su that the indecent act offences that occurred prior to his commission of the predicate offences were impulsive acts. [ 89 ] He admitted that he committed the predicate offences after he became sexually aroused when he observed L.A. standing at a window of her residence when he was looking out of a window at Sherbrooke House. [ 90 ] He admitted slipping away from his residence on the night before the commission of the predicate offences and was surprised when he found the back door to L.A.’s residence to be unlocked.

He went into the residence for a brief period of time, decided that it was not right, and left. [ 91 ] He acknowledged the urge to return to L.A.’s residence the following evening. When he managed to sneak away from his residence he was surprised when he again found the back door unlocked. Faced with this opportunity he felt himself “… ruminating on the possibility that he could get away with this plan if he was quiet enough and not make noise”: ibid at p. 8. [ 92 ] Dr. Su performed psychological tests to confirm the accused’s Full Scale IQ.

It was her opinion that his intellectual ability was in the borderline range of 76. It was also part of her conclusion that, based on current psychological testing, the accused was of “borderline intelligence”: ibid at pp. 11 and 13. [ 93 ] In evaluating the accused’s risk to reoffend, Dr. Su opined that the risk would be high “… if no efforts are made to manage his

risks ” (emphasis added): ibid at p. 13. [ 94 ] In relation to treatment and management of the accused, Dr. Su, in part, was of the opinion that the accused would require long- term therapy, including a requirement that he receive consistent supervision and external controls on his behaviours, which could be provided through a custodial setting: ibid at p. 16. [ 95 ] Dr. Su recommended that in light of the accused’s low intellectual abilities, he would require specialized treatment programs specific to his cognitive limitations.

In addition, given his Indigenous status, he may be more receptive to therapeutic interventions using culturally specific treatment approaches available within a custodial setting: ibid . [ 96 ] Dr. Su also recommended that when the accused is returned to the community, he should have intensive supervision over a long period of time, as well as comprehensive and culturally specific treatment: ibid . (iv) Dr. Todd Tomita [ 97 ] Dr. Tomita is a forensic psychiatrist. Pursuant to an order under s. 752.1 of the Code , he conducted a psychiatric assessment of the accused, including a risk assessment.

His findings are contained in his Assessment Report dated June 26, 2018: [Exh. 11]. [ 98 ] He was qualified to provide opinion evidence in the area of clinical and forensic psychiatry, including the accused’s risk of recidivism, his treatability, recommendations for his treatment, and strategies for managing him in the community. [ 99 ] In preparing his report, and in preparation for testifying at this hearing, Dr. Tomita reviewed all of the materials filed as exhibits at this hearing. He also interviewed the accused. [ 100 ] At the beginning of his report, Dr.

Tomita noted that there were several factors that should be kept in mind, including the relatively young age of the accused and the fact that he has never received sex offender treatment in the Provincial or Federal Correction systems: Assessment Report at para. 10. (

a) The Accused’s Current Risk [ 101 ] In his report, Dr. Tomita gave the following opinions in relation to the accused’s future risk of reoffending: [95] Mr. Pelletier is at high risk of future sexual violence involving exposing his genitals and nonconsenting sexual touching. [96] Mr. Pelletier is at moderate risk of more serious sexual violence such as that enacted in the index sexual offence where there was selection of specific targets, planning and intrusion into the victim’s home. [97] Based on the clinical profile of Mr.

Pelletier’s sexual offending and sexually inappropriate behaviours, there is a real risk of an escalation in severity to more intrusive types of sexual offending; however, based on present data, I am unable to provide a risk estimate with a reasonable degree of medical certainty. [98] Based on Mr. Pelletier’s clinical profile, there is a low risk for his sexual violence to escalate in severity to serious or life- threatening levels. [99] Mr.

Pelletier is at a high risk of future non-sexual violence at lower levels of severity comparable to the kinds of violence that occurred in the outstanding assaults he committed against a peer and a youth correctional officer while in youth custody. The likelihood of escalation to more severe levels of non-sexual physical violence is in the moderate to low range. (

b) Risk Assessment Tools [ 102 ] Dr.

Tomita utilized three different risk assessment tools with the accused including the Psychopathy Checklist-Revised (PCL- R), the Risk for Sexual Violence Protocol (RSVP), and the Historical Clinical Risk-20 Version 3 (HCR 20 version 3), a tool designed to look at the risk of general violence, not specifically sexual violence. [ 103 ] He testified that the PCL-R measures the personality profile of psychopathy, but has also been found to be of assistance when predicting risk for an offender. [ 104 ] He concluded that the accused has the following markers of psychopathy: callousness/lack of empathy, poor behavioural controls, and juvenile delinquency.

It was Dr. Tomita’s opinion that the accused would fall at the border between low and moderate levels of psychopathic personality traits. [ 105 ] Applying the RSVP tool, Dr. Tomita opined ( Assessment Report , para. 134): “ Using the RSVP approach, I identify the most likely future scenario of sexual violence for [the accused] to be a repetition of exposing his genitals and sexual touching and rubbing of an adult stranger or superficial acquaintance female victim. The motive would be to gratify his sexual urges.

The psychological harm from a random attack from a stranger is likely to be high but, in this scenario, [the accused] is unlikely to escalate to serious or life-threatening levels of violence. There might be no specific warning signs other than indicators of general interest in exposing and touching as well as manifestations of inappropriate sexual interactions with females generally. The risk of this behaviour is chronic, and exhibitionists tend to have the highest rates of sexual recidivism among sex offenders.

In light of his history, the risk of this type of sexual recidivism occurring in the future is high.” [ 106 ] He testified that the accused’s risk of future sexual violence is a product of paraphilia, coupled with mild intellectual disability and sexual immaturity.

[ 107 ] He stated, in part, in his report: “… future sexual violence will continue to be in the service of sexual gratification… Of most concern is the possibility that [the accused] may progress along a path of multiple paraphilias called a ‘courtship disorder’. This pattern is marked by a progression in severity from voyeurism to exhibitionism to frotteurism to a sexual preference for coercive and non-consenting sex”: Assessment Report at pp. 22-23. [ 108 ] Dr. Tomita concluded, in part, that the RSVP test results establish that it is “… difficult to conclude that he is higher than a moderate risk, but his escalation scenario is the most concerning scenario”: ibid at para. 135. (

c) The Accused’s Mental Health Diagnosis [ 109 ] Dr. Tomita reported that the accused has been diagnosed with a number of psychiatric disabilities including mild intellectual disability, unspecified schizophrenia spectrum disorder with a historical diagnosis of schizophrenia, exhibitionistic disorder, frotteuristic disorder, and childhood attention deficit hyperactivity disorder: Assessment Report at p. 14. [ 110 ] Dr.

Tomita testified that if the accused in fact has schizophrenia, the symptoms should present within the next five years; this would simply add a further burden for the accused: Transcript, April 24, 2019, at p. 13, ll. 33-47. [ 111 ] Dr. Tomita testified that exhibitionistic disorder and frotteuristic disorder paraphilias are chronic in nature. He described the accused as an individual who acts on his impulses, which are driven by these disorders. If he does not learn to manage them, he will continue to commit sexual offences: ibid at p. 14, ll. 21-45 and p. 18, ll. 2-8. (

d) Nature of the Predicate Offences [ 112 ] Dr. Tomita testified that, in his opinion, the accused committed the predicate offences due to his inability to control his sexual impulses: ibid at p. 17, ll. 19-25 and p. 39, ll. 40-45. [ 113 ] He testified that, in his opinion, the accused was clearly motivated by and was intent on sexual gratification: ibid at p. 41, ll. 1- 10. [ 114 ] He also testified that the accused was able to recall and reconstruct what was happening to him at the time that he committed the predicate offences.

The accused also admitted that he became sexually aroused by the thought of breaking into the house where the predicate offences took place, and that this sexual urge preceded the offences: ibid at p. 58, ll.39-45. [ 115 ] While the accused’s commission of the predicate offences did not involve sexual penetration, Dr. Tomita was of the opinion that there remained a likelihood of progression by the accused to more intrusive forms of sexual offending, including rape: ibid at p. 20, ll. 11-33 and p. 22, ll. 20-21. (

e) The Accused’s Lack of Insight [ 116 ] Dr. Tomita testified that, in his opinion, an individual’s lack of insight into his offending behaviour can be addressed by appropriate treatment, if the individual accepts the treatment. He expressed concern over whether or not the accused would accept treatment: ibid p. 69, ll. 16-20. [ 117 ] It remained a live concern to Dr. Tomita as to whether or not the accused would be responsive to treatment. If the accused was not prepared to undergo treatment, then his risk to reoffend would increase. (

f) The Accused’s Lack of Motivation [ 118 ] The accused reported to Dr. Tomita that he told his treating psychologist, Dr. Bodnarchuk, that the treatment he received helped him learn that “not everything” was about sex. [ 119 ] Dr. Tomita reported that from his review of Dr. Bodnarchuk’s clinical records relating to the accused, the results of the treatment received by the accused appeared “mixed”: Assessment Report at para. 68. [ 120 ] Dr. Tomita reported that it was Dr. Bodnarchuk’s impression that the accused withdrew from further treatment due to a lack of motivation: ibid at para. 70. (

g) The Accused’s Lack of Positive Influences [ 121 ] Dr. Tomita reported that the accused lacked an established network of peers, either prosocial or antisocial. The only people in his social network appear to be his family and professional supports: ibid at para. 20. [ 122 ] Dr.

Tomita was asked if he had any concerns with respect to the accused’s parents supporting a treatment program specific to the accused’s needs: “Well, it will make it more difficult because his parents appear to be -- likely to be the central support in his release planning, and if they are not engaged and in agreement with the risk factors and risk management plan, it will be quite challenging.

He will need to rely on professional supports rather than a combination of social and professional supports, which is always less than ideal because one eventually -- assuming he's on a long-term offender order will need to transition to rely on social supports, not professional ones, eventually.”: Transcript, supra p. 64, ll. 2-13. [ 123 ] Dr. Tomita also reported that, in his opinion, the accused had problems with his ability to adaptively function in the community,

and that he avoided close interpersonal relationships to avoid rejection, thus keeping some strong feelings to himself: ibid at paras. 28 and 29. (

h) The Accused’s Treatment Needs [ 124 ] Dr. Tomita testified that, in his opinion, the accused was treatable. He would require the high intensity sexual offender treatment that is available in the Federal Correction system. He would likely be required to complete a sex offender maintenance program in custody, and a further sex offender maintenance program in the community while on parole: Transcript, supra p. 29, l. 47 and p. 30, ll. 1- 27. [ 125 ] Further, if the accused was involved in other kinds of treatment, such as taking sex-drive-reducing medication, then he would need to be medically monitored. Dr.

Tomita opined that “… anti-androgens, given his level of risk and the severity of his conditions, are the medications to treat his paraphilias”: ibid p.44, ll. 12-15. [ 126 ] Dr. Tomita testified that, in his opinion, the treatment needs for the accused would take years rather than months. The planning of a treatment program specific to the accused should also involve an investigation of his potential for a future schizophrenia diagnosis: ibid p. 30, ll. 5-30. [ 127 ] To meet the treatment needs of the accused, Dr.

Tomita recommended that a “cautious approach”, in which the accused is placed under legal supervision for as long as possible, would give the accused the best chance of future success, and would be the best approach for containment of the risk he presents: ibid p. 35, ll. 23-37. XI. CORRECTIONAL RESOURCES (

i) Mr. Chris Devlin [ 128 ] Mr. Devlin was one of the accused’s Youth Probation Officers.

He was involved with the accused for several years when he was incarcerated at the BYCC until the accused was transferred to the NFRCC in February, 2018. [ 129 ] He testified that, according to the accused’s client logs, the accused was involved in 130 incidents during his stay at the BYCC: Transcript, April 26, 2019, p. 56, ll. 21-36. [ 130 ] A number of these incidents were sexual in nature, and were ultimately the reason why the accused was transferred to the NFRCC: Reasons for Judgment of Judge Bahen, February 16, 2018, [Exh. 1, Tab 4]. (ii) Ms. Montee Dunbar [ 131 ] Ms.

Dunbar is the Assistant Warden at the NFRCC. She described the different categories for the classification of inmates at the NFRCC: general population inmates, protective custody inmates and enhanced supervision (“ESP”) inmates. She testified that the accused spent a considerable amount of time in the ESP category. [ 132 ] She also reviewed various client logs relating to the accused. She testified that the accused was involved in several reported incidents at the NFRCC. (iii) Ms. Claire McKenzie [ 133 ] Ms.

McKenzie was a Parole Officer with CSC for six years before becoming the Regional Manager of the Conditional Release Program for the Pacific Region. [ 134 ] She gave evidence concerning the parole process and the powers of both the Parole Board and Parole Officers within the parole process. She testified that there is a significant onus on a parolee to abide by conditions of release. [ 135 ] She testified that if there is a recommendation for an offender to take anti-androgen medication, he would have to consent to take the medication, and thereafter he would have to be monitored.

This would require him to consent to disclosure of his medical records: Transcript, April 26, 2019, p. 90, ll. 1-3. [ 136 ] Ms. McKenzie testified that when an offender such as the accused is released on parole, he would be required to participate in a sex offender treatment program, with the objective being to learn the requisite skills to self-manage once he has re-integrated into the community. (iv) Ms. Kandace Goldstone [ 137 ] Ms. Goldstone is the Regional Manager of programs for the CSC. [ 138 ] She described the sex offender treatment programs that are available in the Federal Correction system.

These programs can include an Indigenous focus. [ 139 ] She described the intake procedure for the sex offender programs that are provided within a federal institution. One of the goals of the sex offender programs is to teach the offender the necessary skills to self-manage once that individual is released back into the

community. [ 140 ] She testified that the accused, if sentenced to a federal sentence, would likely be placed into a formal Sex Offender Program, which does have an adaptive stream that could address the specific challenges posed by the accused’s intellectual deficits. XII. GLADUE FACTORS [ 141 ] A Gladue Report was prepared for this hearing [Exh. 10]. [ 142 ] James Perrin, the author of the report, reported that the accused lived on reserve at the Ocean Man First Nations Reserve in Saskatchewan until he was five years old. [ 143 ] Mr.

Perrin, in reviewing the accused’s social and Aboriginal history, reported: “… The impacts of his father’s social history have impacted him over the years. Despite being raised in a supportive environment, [the accused] has been subjected to the intergenerational impacts of residential schools through his father…”: Gladue Report at p. 5. [ 144 ] Mr.

Perrin reported that a number of the adverse factors affecting Indigenous people were present in the accused’s personal life, including: • disassociation with First Nations communities; • intergenerational impacts of residential schools; • absence of culture and traditional teachings; • discrimination and/or community fragmentation by First Nations community; • low income/unemployment of adults in household; and • inadequate social support from the educational system: ibid at p. 6. [ 145 ] Mr.

Perrin also reported that the accused actively participated in various alternative education programs designed for Indigenous youth from the ages of 13 to 15. The accused indicated to Mr. Perrin that he was very interested in furthering his education, including an Indigenous component: ibid at p. 3. [ 146 ] The accused also told Mr. Perrin that he understood that he needed to address his mental health, and that he accepted the need to do so regardless of the outcome of these proceedings: ibid at p. 6. XIII.

VICTIM IMPACT STATEMENTS [ 147 ] The victim of the accused’s sexual assault, L.A., and her daughter-in-law, K.A., both filed Victim Impact Statements in June 2017 (“VIS”): [Exh. 3]. [ 148 ] L.A. described, in part, that she feared being alone and experienced paranoia. At times she suffered from panic attacks and had trouble sleeping. [ 149 ] She was fearful and did not want to be left alone.

She expressed being scared that when the accused was released from prison, he might take revenge against her family, as he knows where they live. [ 150 ] As a result of the sexual assault, she participated in 10 therapy sessions at a cost of $900. She also had to take some time off work, and lost $900 in wages. [ 151 ] K.A. described, in part, that after the incident she no longer felt safe in her home.

She experienced occasional nightmares in which a person entered the family home when she was alone with her newborn baby. [ 152 ] She also feared that the accused would return to her residence to take revenge. [ 153 ] As a result of the incident with the accused, she experienced loss and damage, including lost wages, in the approximate sum of $2,500. XIV.

SUBMISSIONS OF THE ACCUSED’S PARENTS [ 154 ] On behalf of the accused’s parents, his mother submitted a five-page letter in which she details the accused’s life from the time he was born until the present. [ 155 ] The submission of the parents is deeply personal. I do not believe it is necessary to describe it in detail here. Some general observations will suffice. [ 156 ] The accused is the middle child of five. His parents have been together for over 25 years. They clearly love and are devoted to

all of their children. [ 157 ] From the time the accused was born until the present, he has experienced many difficulties, including many medical issues and hospital admissions, age-delay deficits, being bullied at school, receiving an ADHD diagnosis at the age of four, being hit by a car when he was riding his bicycle, and intergenerational impacts arising from his Indigenous heritage. [ 158 ] Despite those trials and tribulations, he still managed to excel in team sports, in particular basketball and soccer, and enjoyed outdoor activities such as skiing and snowboarding. [ 159 ] His parents are clearly devoted to their son, and stand ready as a resource for him in the community when he is permitted to join society outside of a custodial setting. [ 160 ] It is the opinion of his parents that “with supports and groups, structure set up a comfortable environment [the accused] can lead a happy healthy life, be able to enjoy his young life.

Please give him that chance”. XV. POSITION OF THE PARTIES ON DESIGNATION (

i) The Crown (a) S. 753(1)(a)(

i) and (ii) and (

b) of the Code Analysis [ 161 ] The Crown submitted that the evidence establishes beyond a reasonable doubt that the accused “must be declared a dangerous offender” pursuant to ss. 753(1) (a)(

i) and (ii) and (

b) of the Code . [ 162 ] In its Written Submissions at para. 173, the Crown summarized what it submitted was the pertinent evidence in relation to a finding of dangerousness. This included evidence that the accused was motivated by sexual fantasies, found opportunities to engage in inappropriate sexual behaviour, and failed to control his impulses and his behaviour. Of further concern is the fact that the female victims were all strangers that he watched for a period of time before committing his offences.

The Crown argues that the offences committed by the accused constitute a pattern of repetitive behaviour. [ 163 ] The Crown also relied on the evidence of Dr. Tomita, who opined that there was a high risk of the accused committing exhibitionism and/or frotteurism in the future, and that such offences could inflict psychological damage on the victims, as evidenced by the victim impact statements of L.A. and K.A. Dr.

Tomita concluded that there was a moderate risk of more serious sexual violence in the future. [ 164 ] The Crown argues that the opinions of the psychiatrists and psychologists establish a likelihood that the accused will fail in the future to control his sexual impulses, and that this failure will likely cause psychological harm to others. [ 165 ] The Crown submitted that the court ought to give significant weight to the opinion of Dr.

Tomita that due to the young age of the accused and the unpredictability of his future behaviour, his treatment needs would require a federal custodial sentence. (b) S. 753(4.1) of the Code Analysis [ 166 ] In its Written Submission with respect to the s. 753(4.1) of the Code analysis, the Crown proposed: [177] In determining whether there exists a reasonable expectation that a lesser measure will adequately protect the public, the court considers and weighs the whole of the evidence adduced; neither party bears a legal burden of proof.

What is required is the proof that the nature and severity of an offender’s identified risk can be sufficiently contained so as to protect the public. [178] Treatability does not require that [the accused] be “cured” or that rehabilitation is insured. Rather that the risk can be sufficiently managed so as to protect the public. [179] When Dr.

Tomita testified that [the accused] is treatable, he supported the belief that an LTSO will reduce the threat that [the accused] currently poses to the life, safety or physical or mental well-being of other persons to an acceptable level. (c) S. 753(5) of the Code Analysis [ 167 ] In the event the accused is not found to be a dangerous offender, the Crown submitted that, pursuant to s. 753(5) of the Code , the evidence led by the Crown at this hearing was more than ample to justify a designation that the accused is a long-term offender, and that he be subject to a 10-year LTSO. (

d) Range of Sentences for the Predicate Offences [ 168 ] The Crown submitted that a 4-year penitentiary sentence would be appropriate for the accused if he was to receive a determinate sentence. That sentence should be followed by the imposition of a 10-year LTSO. [ 169 ] The Crown identified the following aggravating factors pertaining to the accused’s commission of the predicate offences: • He engaged in a high level of premeditation and planning before committing the offences; • He knew the subject residence was occupied;

• He bears a high degree of moral culpability; • The victim was vulnerable; • He inflicted violence and psychological harm on the victim; • He inflicted psychological harm on the other occupants of the residence; • He has prior convictions for related offences; and • He was serving a sentence with 24/7 supervision in the community when he committed the predicate offences. [ 170 ] Regarding credit for time in custody, the Crown submitted that the Court ought not to give enhanced credit for the time the accused has been in custody, as it would potentially put the public at risk. [ 171 ] As of this date, the accused has not received appropriate treatment specific to his needs.

The goal of public protection would be best met by ensuring that the sentence for the accused would place him in the federal correctional system where his specific treatment needs could be addressed. (ii) The Accused (

a) Limitations on Dangerous Offender Designation [ 172 ] The accused submitted that the evidence fell short in establishing beyond a reasonable doubt that the accused ought to be designated as a dangerous offender. [ 173 ] The accused relied heavily on the British Columbia Court of Appeal (“BCCA”) decision in R. v.

Walsh , 2017 BCCA 195 , to justify his position. [ 174 ] The accused submitted that the BCCA in Walsh established that the dangerous offender legislation was only intended to capture “… a relatively small number of offenders, most of whom have committed a relatively large number of very serious offences, and whose actions show strong evidence of a pattern that is likely to continue”: ibid at para. 18. The accused says that he does not fall into that category. [ 175 ] The accused submitted that his conduct falls short of being “highly dangerous” or falling “… at or near the extreme end”: ibid . (

b) Pattern of Repetitive Behaviour [ 176 ] The submissions of the accused on this issue can be summarized as follows: • That Walsh establishes that the evidence must support “… a clear pattern of behaviour as an important threshold to ensure that the net is not cast too wide…”: para. 19; • That not only must there be a “clear pattern of behaviour”, but the similarity in the pattern must “… be found not only in the types of offences but also in that the degree of violence or aggression threatened or inflicted on the victims…”: para. 35; • That the evidence led by the Crown fell short of establishing a clear pattern of behaviour, not only in the types of offences, but also the degree of violence in the commission of the offences; • That the level of violence in the accused’s commission of his prior sexual offences was at the low end of the scale; • That the evidence fell short of establishing that his behaviour falls into a pattern of “repetitive violent behaviour or persistent aggressive behaviour” that would represent a serious risk to others: para. 36; • That Dr.

Tomita, in his Psychiatry Report, supra , opined that the accused was at a ”… low risk for his sexual violence to escalate in severity to serious or life-threatening levels”: para. 98; and • That Dr. Tomita’s risk assessment would not put the accused at the extreme end of the scale, to the extent that it would be necessary to designate him as a dangerous offender. (

c) Similarity of the Predicate Offences to Prior Offences [ 177 ] The accused submitted that the Crown’s analysis of the similarities between the predicate offences and the accused’s prior offences [Crown Written Submissions at para. 173] was based more on an analysis of similar fact evidence rather than actual similarities.

This approach was described as “not helpful” in Walsh : supra at para. 46 . [ 178 ] The accused submitted that his commission of the predicate offences was completely different in nature from his prior offences. [ 179 ] The predicate offences involved a break and enter into private property, while his prior sexual offences involved voyeurism, exhibitionism and frotteurism, committed in relatively public spaces and ending almost immediately when the victim protested. (

d) Failure to Control Sexual Impulses

[180] The accused submitted that the Crown has failed to prove beyond a reasonable doubt that he has shown a failure to control hissexual impulses. [181] Dr. Tomita testified that there were no incidents of exhibitionism, frotteurism or voyeurism when the accused was transferred toNFRCC: Transcript, April 25, 2019, at p. 2, ll. 34-39. [182] Dr. Tomita formed the opinion that the accused wanted to avoid being labelled as a “skinner” at NFRCC: ibid at p. 3, ll. 17-23. [183] Dr.

Tomita agreed with the suggestion of the accused that he has the ability to control his impulses if motivated to do so: ibid atll. 27-32. [184] The accused submitted that his ability to control his impulses to avoid being labelled a “skinner” is an example of him beingable to control his impulses if he is properly motivated. (

e) Diminished Moral Culpability [185] The accused submitted that the court should recognize his diminished moral culpability when determining an appropriatesentence. This diminished responsibility arises from the following factors: • The accused was 16 years old when he committed the predicate offences. He was described by Dr.

Bodnarchuk as beingimmature for his age; • He has been diagnosed with a mild intellectual disability; • He has been diagnosed with schizophrenia, which is either in remission or was a misdiagnosis; • His executive brain functioning impacted his ability to exercise sound and considered judgment at the time he committedthe predicate offences; and • He has been subjected to the intergenerational impacts of residential schools through his father: Gladue Report, supra at p.5. (

f) Sentence to be Imposed for the Predicate Offences [186] The accused submitted that a time served sentence ought to be imposed, because his time in custody since the commission of thepredicate offences is more than enough to meet the principles of general and specific deterrence. [187] He submitted that since he was transferred to NFRCC, his inappropriate sexual behaviours have ceased. This demonstrates hisability to control his behaviour. His parents stand ready to have their son return to live with them.

Additionally, appropriate treatmentneeds specific to the accused could be met through the fashioning of a lengthy probation order. [188] The accused submitted that his submissions opposing a dangerous offender designation apply equally to his opposition to theimposition of a LTSO. XVI. DESIGNATION STAGE ANALYSIS (

i) S. 753(i)(a)(

i) and (ii) of the Code [189] Both subsection (a)(

i) and (ii) of s. 753(1) of the Code require that the Crown must establish a “pattern of behaviour” - either“repetitive” or “persistent aggressive”. The term “pattern” has been subject to appellate judicial consideration. [190] In R. v. Dow, 1999 BCCA 177 , 1999 BCCA 0177, the BCCA noted: [21] The elements of subpara.(

i) of para.753(

a) are: (1) that there be a pattern of repetitive behaviour revealed in the offences and thatthe pattern be present in the offence which gave rise to the dangerous offender proceeding; and (2) that the pattern of repetitive behaviourcontained two essential elements: first, a failure to restrain the relevant repetitive behaviour and, second, a likelihood of causing death orinjury through a failure to restrain that behaviour in the future. [22] So there must be a pattern revealed by repetitive behaviour; the pattern must contain an element that the dangerous behaviour wasnot restrained in the past; and there must be a likelihood that the same behaviour in the future will not be restrained and will cause deathor injury. [23] Each of those three elements must be present in the pattern and those three elements serve to define the relevant characteristics ofthe pattern for the purposes of subpara.753(a)(i).

But, necessarily, the description of the three elements in subpara.(

i) is couched ingeneral terms. So, in any particular case, for the purposes of describing the pattern, each of the three elements may be particularized in away that gives individuality to the pattern by indicating specific similarities between one incident and another.

But it is important that theprocess of particularization not result in a level of detail which obscures the common characteristics which embody and reveal the threeessential elements of the pattern. [24] In short, the significance and the relevance of common elements of the pattern must be determined by whether they tend to showfirst, repetitive behaviour, second, that there has been a failure in each case to restrain the behaviour, and third, that there has been injuryto other persons arising from that failure. If any of those three elements is missing, then there may be a pattern but it will not be a

relevant pattern. But if all three are present then the essential elements of a relevant pattern are revealed. [191] The elements of a “pattern”, as articulated in Dow, were applied by the BCCA in Walsh, supra.

Bennett J.A. summarized theDow analysis as follows: [34] A number of principles emerge from this analysis, including the finding that narrowing the meaning of the term “pattern” is aquestion of law; that it is for the sentencing judge to determine the pattern, not psychologists or psychiatrists; and while there may bedifferences in the offences making up the pattern, these differences do not displace key significant and relevant similarities. In Dow, thefemale victims were violently assaulted in generally similar circumstances. This Court allowed the appeal and found that Dow was adangerous offender.

In a subsequent decision, this Court imposed an indeterminate sentence (1999 BCCA 257 ). [192] In R. v. Cook, 2010 MBQB 237 , 2010 CarswellMan 622 (Man. Q.B.) Duval J. considered the relevance of a priorcriminal record when determining whether there is a “pattern” in a dangerous offender proceeding. The court adopted the approach takenby the Alberta Court of Appeal in R. v.

N. (L.), 1999 ABCA 206, noting at para. 43: [43] The terms "a pattern of repetitive behaviour" and/or "a pattern of persistent aggressive behaviour" require some degree of actual orattempted violence or endangerment, which can be established by similarities in the kind of offences, or in the degree of aggression orviolence. The fewer the incidents, the more similar they must be to constitute a "pattern". The conduct must also demonstrate a relativelyhigh degree of intractability, in that the reasons for the behaviour should militate against any reasonable prospect for meaningful changein the future.

Therefore, the context of the past criminal conduct will be relevant. See Neve. [193] In addition to establishing a “pattern”, the Crown must also establish, in the case of ss. (i), that the pattern demonstrates a“likelihood of causing death or injury to other persons, or inflicting severe psychological damage through failure by the offender, in thefuture, to restrain his or her behaviour: R. v.

Pascal, 2013 SKQB 447 at para. 83, affirmed on appeal, 2016 SKCA 152. [194] In the case of ss. (ii), the Crown must not only establish a “pattern”, but it must also establish that the offender’s persistentaggressive behaviour demonstrates a “substantial degree of indifference on the part of the offender respecting the reasonably foreseeableconsequences to other persons of that behaviour”: ibid. [195] I have already noted the criminal record of the accused, and the circumstances surrounding his criminal record.

I would describethe criminal record of the accused to be relatively short and not involving very serious offences. [196] The accused’s commission of the predicate offences was sexually motivated, but otherwise dissimilar to his prior convictions forindecent acts. The predicate offences involved planning and deliberation, whereas the prior indecent acts were essentially opportunisticoffences.

The prior indecent acts involved exhibitionism and frotteurism, which I find would be consistent with the accused’s diagnosisof immature sexual behaviour, and inconsistent with intractable sexual behaviour. [197] In Pascal, supra, at para. 89, in the context of the establishment of a “pattern” of repetitive behaviour or persistent behaviour,the young age (18) of Mr.

Pascal was a critical feature: [89] One cannot escape the observation that it almost presents a contradiction in terms to suggest that an offender, as young as Mr.Pascal was when he committed the underlying offence, can have established a “pattern of repetitive behaviour” or “a pattern of persistentbehaviour” sufficient to support a dangerous offender determination in the circumstances outlined by ss. 753(1)(a). While I do notsuggest that it can never be the case that someone as young as Mr.

Pascal was can be found a dangerous offender, I have concluded thatin his particular circumstances the evidence falls short of supporting such a conclusion. [198] At para. 15 of the appeal decision, supra, the Court of Appeal made specific reference to para. 89 of the trial ruling andcommented, in part, “… the fact of Mr. Pascal’s young age was central to the trial Judge’s rejection of the Crown’s application for a DOdesignation”. [199] Dr. Tomita was the court-appointed assessor. I am required to give deference to his opinions and conclusions: R. v. Badger, 2012SKCA 119. [200] As previously noted, Dr.

Tomita completed three different risk assessment tools with the accused.

I find the risk assessmenttools reliably establish that the most likely future risk scenario of sexual violence by the accused would include exhibitionism, voyeurismand frotteurism. [201] In relation to ss. (i), I find that the Crown has not proven beyond a reasonable doubt that the evidence establishes that theaccused’s conduct, in the future, will likely cause death or injury to other persons or inflict severe psychological damage to other personsthrough a failure to restrain his behaviour. [202] In relation to ss. (ii), I find that the Crown has not proven beyond a reasonable doubt that the evidence establishes that theaccused’s conduct amounts to a “pattern of persistent aggressive behaviour”, showing a substantial degree of indifference on the part ofthe accused respecting reasonably foreseeable consequences to other persons because of his behaviour. (ii) S. 753(1)(

b) of the Code [203] The accused has admitted that he committed a serious personal injury offence when he sexually assaulted the complainant in herresidence. [204] As previously noted, Dr. Tomita testified that, in his opinion, the accused committed the predicate offences due to his inabilityto control his sexual impulses.

[ 205 ] I am satisfied, based on that opinion, that the Crown has proven beyond a reasonable doubt that the accused “showed a failure to control his sexual impulses” when he committed the predicate offences. [ 206 ] However, the Crown must also prove beyond a reasonable doubt that it is more likely than not that the accused’s failure in the future to control his sexual impulses will cause “injury, pain or other evil to other persons”. [ 207 ] Given the age of the accused, along with his diagnosed sexual immaturity, social awkwardness, developmental delay, intellectual deficits and paraphilia, it is difficult to come to any clear prediction that the accused will fail in the future to control his sexual impulses, causing injury, pain or other evil to other persons. [ 208 ] I find the best predictions of the accused’s future behaviour come from the opinions of the experts.

Dr. Bodnarchuk, Dr. Janke, Dr. Su and Dr. Tomita were all alive to the accused’s risk of sexually reoffending in the future. Yet, with those risk considerations in mind, they all contemplated the accused’s eventual reintegration into society under close supervision. [ 209 ] As previously noted, Dr. Tomita opined that the accused was “treatable”. The Crown has conceded that the accused is “treatable”. [ 210 ] In R. v.

Yogaratnam , 2009 ONCJ 121 , a dangerous offender case, Hawke J. (at para. 48) was of the view that it was necessary for the court to exercise “great caution” before designating the accused as dangerous, in light of his young age. [ 211 ] The predicate offence in Yogaratnam was sexual assault. At the time the accused committed the sexual assault, he was 18 years old.

At the time of the dangerous offender proceeding, he was 21 years old. [ 212 ] In declining to designate the accused as dangerous, the court took into account psychiatric evidence that the accused was not only young, but also lacked maturity, lacked education, and possibly had a learning disability: para. 49. [ 213 ] The court was satisfied that there was evidence to support the imposition of an LTSO, as there was a reasonable possibility of eventual control of the risk in the community: para. 52. [ 214 ] In LSJPA-146 , 2014 QCCA 303 , the Québec Court of Appeal upheld a designation of dangerousness with respect to a young accused who had repeatedly committed serious personal injury offences (sexual assaults) against vulnerable victims. [ 215 ] The Court of Appeal held that the judge’s assessment of the evidence, in particular the expert evidence, must be given significant deference.

However, the court also stated in part at para. 76: [76] … I am aware of the exceptional nature of the situation.

It is not often -nor should it be - that a dangerous offender designation is imposed on a young adult whose delinquency occurred while he was a minor or barely an adult and who has never served a prison term in the past… [ 216 ] I am not satisfied that the Crown has proven beyond a reasonable doubt that it is more likely than not that the accused will cause injury, pain or other evil to other persons through his failure in the future to control his sexual impulses. (iii) Gladue Factors [ 217 ] Gladue factors have played a role in this hearing. In R. v.

Mattson , 2014 ABCA 178 at para. 49 , the Alberta Court of Appeal noted that Gladue factors are applicable to the “sentencing” stage rather than the “designation” stage of dangerous offender proceedings. XVII. RULING ON DESIGNATION [ 218 ] I am not satisfied beyond a reasonable doubt that the accused constitutes a threat to the life, safety or physical or mental well- being of other persons. I therefore decline to designate the accused as a dangerous offender. XVIII.

PENALTY STAGE ANALYSIS [ 219 ] In its written submissions, the Crown provided the court with various authorities to justify its position that the accused ought to receive a determinate sentence of four years concurrent, to be followed by a 10-year LTSO pursuant to s. 753(5) of the Code . [ 220 ] The Crown has submitted that the accused should not receive enhanced credit for the time he has served in prison, as that would result in the potential for his release back into the community untreated, which would put the public at risk. [ 221 ] Dr.

Tomita testified that the accused would require the high-intensity sex offender treatment that is available in the Federal Correction system. After his release, he would require sex offender maintenance programs in the community while on parole. His treatment could take years, and would likely include the use of anti-androgen medication. [ 222 ] Dr. Janke held a “very strong opinion” that the accused would require very close supervision in the community following his release from prison. He also believed that the treatment of the accused could include anti-androgen medications. [ 223 ] Ms.

Goldstone testified that there were specific sex offender treatment programs available in the Federal Correction system that could include an Indigenous focus. She as well testified that, within the Federal Correction system, the accused could avail himself of a sex offender program that had an adaptive component to address his intellectual deficits.

[ 224 ] Between the BYCC and NFRCC, the acc

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